Ex Parte Kline et al

Patent Trial and Appeal Board

Jun 11, 2013

10811695 (P.T.A.B. Jun. 11, 2013)

UNITED STATES PATENT AND TRADEMARK OFFICE
__________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
__________

Ex parte MARK JAMES KLINE, JEROMY THOMAS RAYCHECK,
DONALD CARROLL ROE, PANKAJ NIGAM,
and CARL LOUIS BERGMAN
__________

Appeal 2011-009339
Application 10/811,695
Technology Center 3700
__________

Before TONI R. SCHEINER, LORA M. GREEN, and ANNETTE R. REIMERS,
Administrative Patent Judges.

SCHEINER, Administrative Patent Judge.

DECISION ON APPEAL
This is an appeal
1
under 35 U.S.C. § 134 from the rejection of claims
21-23, 25-27, 29, 30, 31-33, 35, 36, 39, and 40, directed to a wearable
absorbent article. The claims have been rejected on the grounds of
anticipation and obviousness. We have jurisdiction under 35 U.S.C. § 6(b).
We reverse.

1
Appellants identify the Real Party-In-Interest as The Procter & Gamble
Company of Cincinnati, Ohio (App. Br. 1).
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STATEMENT OF THE CASE
“The present invention relates to a disposable absorbent article having
stretchable properties for sustained fit and conformity to the wearer's
anatomy while also being adaptable to the varying three-dimensional nature
of the wearer's anatomy” (Spec. 1).
Claims 21-23, 25-27, 29, 30, 31-33, 35, 36, 39, and 40 are pending
and on appeal. Claim 21 is representative of the subject matter on appeal:
21. A front-fastenable disposable wearable absorbent article, comprising:
a longitudinal axis; and
a back waist region that includes:
a first side ear on a first side of the longitudinal axis;
a second side ear on a second side of the longitudinal
axis; and
an intermediate stretch region disposed primarily in the
back waist region, between the side ears and having an
intermediate lateral tensile modulus;
wherein the first side ear includes a first fastener and a
first side ear stretch region having a first side ear lateral tensile
modulus that is greater than or about equal to the intermediate
lateral tensile modulus.

The Examiner relies on the following evidence:
Buell et al. US 5,221,274 Jun. 22, 1993
Lodge et al. WO 97/47264 A1 Dec. 18, 1997
The claims stand rejected as follows:
Claims 21, 22, 25, 26, 29, 31, 32, 35, 36, and 39 under 35 U.S.C.
§ 102(b) as anticipated by Lodge (Ans. 4-7).
Claims 23, 27, and 33 under 35 U.S.C. § 103(a) as unpatentable over
Lodge (Ans. 9-12); and
Claims 21, 29, 30, 31, 39, and 40 under 35 U.S.C. § 102(b) as
anticipated by Buell (Ans. 7-9).
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ANTICIPATION BY LODGE
Issue
Independent claim 21 is directed to a front-fastenable disposable
absorbent article comprising, in relevant part, side ears and “an intermediate
stretch region disposed primarily in the back waist region, between the side
ears.” Independent claim 31 is directed to a pant-type disposable absorbent
article comprising, in relevant part, side panels and “an intermediate stretch
region disposed primarily in a back waist region of the article between the
side panels.”
Lodge discloses a front-fastenable absorbent article. Figure 17 of
Lodge is reproduced below:

Figure 17 is a plan view of Lodge‟s absorbent article 40, showing the
rear waist region 74, and an elongated zone 52, which “comprises
incrementally stretched regions 54 which result in the elongated zone 52
being elongated or extended” (Lodge 12: 25-31; 21: 6-11; 22: 1-6).
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The Examiner finds that the absorbent article depicted in Figure 17 of
Lodge comprises, in relevant part:
[A] front-fastenable disposable wearable absorbent article,
diaper 40, comprising the following: a longitudinal axis; and a
back waist region 74 that includes: a first side ear on a first side
of the longitudinal axis; a second side ear on a second side of
the longitudinal axis; and an intermediate stretch region,
elongated zone 52, disposed primarily in the back waist region
74 (inasmuch as the zone is triangular and the majority of the
area of the triangle is disposed in the back waist region)
between the side ears . . .
(Ans. 4).
The Examiner‟s position is that the claims “only require[] that the
intermediate stretch region be located between the side ears or side panels,
rather than the a certain portion of the zone being between the side ears” and
“Fig. 17 clearly shows that all of zone 52 is disposed between the side ears”
(Ans. 12).
Appellants contend that “claim 21 sets forth two limitations with
regard to the location at which the intermediate stretch region is disposed.
First, the intermediate stretch region is „disposed primarily in the back waist
region.‟ Second, the intermediate stretch region is „disposed primarily . . .
between the side ears.‟” (Reply Br. 2.) Likewise, “[t]he intermediate stretch
zone of claim 31 is disposed in a particular location that is similar to the
location of the intermediate stretch zone of claim 21” (App. Br. 8).
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The issue raised by this rejection is whether the preponderance of the
evidence of record supports the Examiner‟s finding that Lodge discloses an
absorbent article with an intermediate stretch region disposed primarily in
the back waist region, between the side ears, of the article.
Discussion
The Specification states that “[t]he term „disposed‟ is used to mean
that an element(s) is formed (joined and positioned) in a particular place or
position as a unitary structure with other elements or as a separate element
joined to another element” (Spec. 4). While the Specification does not
provide a particular definition for the term “primarily,” we agree with
Appellants that the plain and ordinary meaning of the word applies, and that,
in this context, “the broadest reasonable interpretation of the phrase
„disposed primarily‟ is: having a majority of an element positioned in a
particular place” (App. Br. 5). Thus, we agree with Appellants that “when
claim 21 recites „an intermediate stretch region disposed primarily in the
back waist region, between the side ears,‟ the claim requires that a majority
of the intermediate stretch region is positioned both in the back waist region
and between the side ears” (id.).
Even if we accept the Examiner‟s assertion that zone 52 is a region of
“intermediate lateral tensile modulus,” as defined by the claims, we agree
with Appellants that Lodge “does not disclose an intermediate stretch region
wherein the majority of the intermediate stretch region is positioned both in
the back waist region and between the side ears” (App. Br. 7-8 (emphasis
added). Lodge‟s drawings are not described as being to scale, so they cannot
be used to show precisely how much of zone 52 is in both in the back waist
region, and between the side ears, but it is plain that the greater part of zone
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52 is outside the area required by claim 21 (and outside the area required by
claim 31 as well).
2
Thus, we agree with Appellants that Lodge “does not
disclose „an intermediate stretch region disposed primarily in the back waist
region, between the side ears,‟ as recited in part in claim 21 . . . [and] does
not anticipate independent claim 21, or any of the claims that depend
therefrom” (id. at 8). Similarly, we agree with Appellants that Lodge “does
not disclose „an intermediate stretch region disposed primarily in a back
waist region of the article between the side panels,‟ as recited in claim 31”
and “does not anticipate independent claim 31, or any of the claims that
depend therefrom” (id. at 10).
The preponderance of the evidence of record does not support the
Examiner‟s finding that Lodge discloses an absorbent article with an
intermediate stretch region disposed primarily in the back waist region,
between the side ears, of the article. Accordingly, we will reverse the
rejection of claims 21, 22, 25, 26, 29, 31, 32, 35, 36, and 39 as anticipated by
Lodge.
OBVIOUSNESS OVER LODGE
Claims 23, 27, and 33 stand rejected as unpatentable over Lodge (see
Ans. 9-12).
This rejection rests on the Examiner‟s underlying finding that Lodge
discloses an absorbent article with an intermediate stretch region disposed

2
It is well settled that “patent drawings do not define the precise proportions
of the elements and may not be relied on to show particular sizes if the
specification is completely silent on the issue.” Hockerson-Halberstadt, Inc.
v. Avia Group Intern., Inc., 222 F.3d 951, 957 (Fed. Cir. 2000) (citing In re
Wright, 569 F.2d 1124, 1127 (CCPA 1977)).
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primarily in the back waist region, between the side ears (or side panels) of
the article.
As the evidence of record does not support the Examiner‟s finding, we
will reverse this rejection as well.
ANTICIPATION BY BUELL
Claims 21, 29, 30, 31, 39, and 40 stand rejected as anticipated by
Buell.
Issue
Buell discloses a front-fastenable absorbent article, depicted in Figure
1, reproduced below:

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Figure 1 is a cut-away plan view of Buell‟s absorbent article 20,
comprising, in relevant part, a top sheet 24, a back sheet 26, a bi-laminate
material comprising an elastomeric member 76 positioned between the top
sheet 24 and the back sheet 26 and a resilient member positioned between
the back sheet 26 and the elastomeric member 76, a first waist region 56, a
second waist region 58, positioning patches 50, and an elastic waist feature
34 (Buell, col. 7-9).
The Examiner finds that Buell‟s absorbent article comprises:
[A] front-fastenable disposable wearable absorbent article 20,
comprising: a longitudinal axis; and a back waist region 58 that
includes: a first side ear on a first side of the longitudinal axis; a
second side ear on a second side of the longitudinal axis; and an
intermediate stretch region, namely an elastic waist feature 34
including elastomeric member 76, disposed primarily in the
back waist region 58 between the side ears 70 and necessarily
having an intermediate lateral tensile modulus; wherein the first
side ear includes a first fastener and a first side ear stretch
region having a first side ear lateral tensile modulus that is
greater than or about equal to the intermediate lateral tensile
modulus.
(Ans. 7.)
The Examiner's position regarding the relative lateral tensile moduli
of the side ears and the back waist region “is based upon Buell's disclosure
that the elastic waist feature contains both the backsheet material and an
elastomeric material 76 whereas the first side ear contains only the backsheet
and topsheet materials and a positioning patch 50 or 650 that imparts
additional stiffness to reduce folding during wear” (id. at 7-8).
The Examiner asserts that “an elastomeric material by its nature has a
lower tensile modulus than a non-elastomeric material, thus the first side ear,
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together with the stiffness-imparting positioning patch 50/650 necessarily
has a higher tensile modulus than the intermediate region” (id. at 8).
Appellants contend that Buell does not disclose an intermediate
stretch region disposed in the location required by claims 21 and 31(Reply
Br. 8), nor does Buell disclose an intermediate stretch region with a relative
intermediate lateral tensile modulus as required by the claims (id. at 10).
The issue raised by this rejection is whether the preponderance of the
evidence of record supports the Examiner‟s finding that Buell discloses an
absorbent article with an intermediate stretch region (i.e., a region having an
intermediate lateral tensile modulus) disposed primarily in the back waist
region, between the side ears, of the article.
Discussion
First, we note, as did Appellants, that Buell‟s waist regions, 56 and 58
“contain different elements arranged in different ways” (Reply Br. 10), and
the rejection juxtaposes features from the two different waist regions, 56 and
58, in a manner not disclosed in Buell‟s drawings or Specification - for
example, positioning patches 50 are not in waist region 58, which both
Appellants and the Examiner agree is the back waist region.
Second, no matter which elements the Examiner relies on in
determining the relative lateral tensile moduli of the side ears and the stretch
region in the back waist region, we agree with Appellants that the elasticity
(or inelasticity) of these elements, alone, cannot be used as an indicator of
their lateral tensile moduli (id. at 13), for the reasons set forth in detail on
pages 11-13 of the Reply Brief.
The preponderance of the evidence of record does not support the
Examiner‟s finding that Buell discloses an absorbent article with an
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intermediate stretch region (i.e., a region having an intermediate lateral
tensile modulus) disposed primarily in the back waist region, between the
side ears, of the article.
SUMMARY
The rejection of claims 21, 22, 25, 26, 29, 31, 32, 35, 36, and 39 as
anticipated by Lodge is reversed.
The rejection of claims 23, 27, and 33 as unpatentable over Lodge is
reversed.
The rejection of claims 21, 29, 30, 31, 39, and 40 as anticipated by
Buell is reversed.

REVERSED

cdc